Three counties have fought to opt out of a fingerprint-sharing program.

Immigration and Customs Enforcement official David Venturella started off a meeting with San Francisco law enforcement leaders on Tuesday with an apology. ICE, he admitted, had given conflicting information about Secure Communities, a program that shares fingerprints taken for criminal background checks with federal immigration enforcement, and whether counties like San Francisco could opt out.

The meeting was one of three held in the past week — with officials from Arlington, Va., on Nov. 5, and from Santa Clara, Calif., later on Tuesday — between ICE and communities that had voted to be removed from the program, claiming it could harm public safety and lead to fear of police among immigrants.

In all three, the message was the same: Venturella, the assistant director of Secure Communities, acknowledged there had been reports from ICE that the program was optional and that such meetings were the first step in opting out. But the counties could not withhold information from federal immigration authorities, he informed them.

“They flew all the way here just to basically say, ‘We’re going back on our word,’” said Angela Chan, an attorney with the Asian Law Caucus who was briefed after the meeting Tuesday. “The whole entire thing is kind of a puppet show.”

The message on Secure Communities and whether or not counties could be removed from the program has changed multiple times in the last six months, as local officials in Arlington, San Francisco and Santa Clara sought to determine how they could opt out of sending fingerprints to immigration enforcement. Now, even after ICE held meetings with the three counties confirming that opting out is impossible, a coalition of civil rights groups is fighting to get more information on the program and how communities can avoid joining it.

The key, according to activists, will be a Dec. 6 hearing on an injunction filed against the Department of Homeland Security last month by the National Day Laborer Organization Network, the Center for Constitutional Rights and the Immigration Justice Clinic of the Cardozo School of Law. A court in New York will decide whether Homeland Security officials have to hand over documents demanded by the groups in February related to opting out.

With those documents, critics of the program hope to be able to prove what Venturella alluded to at the beginning of the San Francisco meeting: The agency has been misleading the public — albeit perhaps unintentionally — about how Secure Communities works and what it requires from local police forces that would rather not share fingerprints with immigration officials.

“What their public definition of ‘opting out’ is has changed based on what they think they can get away with,” Chan said.

Officials in 34 states have signed memorandums of understanding to participate in the program, which so far is voluntary at the state level. (Some governors, such as Democrats Deval Patrick in Massachusetts and Bill Ritter in Colorado, have delayed requests to sign into Secure Communities, while other states are slated to join the program in the next few years.) There was indication from ICE officials this summer that local participation was also optional, even in states where governors had agreed to participate.

“No jurisdiction will be activated if they oppose it,” Dan Cadman, an ICE regional coordinator for the program, wrote in a July 23 email to the New York State Division of Criminal Justice Services. “There is no ambiguity on that point. We get it.”

On Aug. 17, ICE released a report called “Setting the Record Straight” that laid out specific steps for counties that wanted to opt out of Secure Communities. The steps were later reiterated in letters by Homeland Security Secretary Janet Napolitano and an assistant attorney general.

But a sudden message shift on Secure Communities occurred in the beginning of October. Immigration officials began to say opting out was impossible. “We don’t consider Secure Communities an opt in/opt out program,” Napolitano said on Oct. 6. By Oct. 20, the report called “Setting the Record Straight” went missing from ICE’s website.

The options presented to Arlington, San Francisco and Santa Clara were far from what the counties expected when they voted to opt out. In a memo to Arlington County board members after her Nov. 5 meeting with ICE, County Manager Barbara Donellan clarified ICE’s definition of opting out of Secure Communities.

“All jurisdictions have the option of not receiving the results of ICE’s database inquiries. (This option is what ICE officials were referring to as the ‘opt out,’ for localities, and they acknowledged the confusion these statements have created),” she wrote.

For critics of the program, the new message that Secure Communities is mandatory is a major problem.

“If ICE for some reason decides not to follow through, I think we’re looking at possible massive deception,” Sarahi Uribe, lead organizer of an anti-Secure Communities coalition called the Uncover The Truth Campaign, told TWI in October.

But there is some hope for counties that don’t want to help immigration officials deport undocumented immigrants who are released without being charged with crimes. (In cases of domestic violence, for example, police sometimes arrest both parties until they can determine which person is the victim, a practice that has led to deportation proceedings for some abuse victims under Secure Communities.)

ICE officials said Tuesday that the holds they place on illegal immigrants detected under Secure Community are optional for local police — meaning law enforcement agencies could ignore detainer requests from ICE and release immigrants they do not charge with crimes, said Eileen Hirst, a spokeswoman for San Francisco Sheriff Mike Hennessey who was at the meeting Tuesday.

“That’s the silver lining,” Chan said. “At least he didn’t go back on his word on that.”

Tuesday marked what could be a historic turning point in efforts to opt-out of Secure Communities now that the process has been outlined by three high-level federal officials.

The Board of Supervisors in Santa Clara County, California, kicked things off in the morning when they voted 5-0 on a resolution to “direct the County Executive and County Counsel to notify U.S. Immigration and Customs Enforcement (ICE) and the California Department of Justice of the County’s opposition to participating in Secure Communities.”

“We are not here to do the job of ICE,” said Supervisor George Shirakawa.

Dozens of onlookers gave the supervisors a standing ovation.

Across the country board members in Arlington County, Virginia, voted 5-0 on a similar opt-out measure:

The Arlington County Board wishes to discontinue participation in the Secure Communities program. The County Manager is directed to formally notify Immigration and Customs Enforcement (ICE) and the Virginia State Police of Arlington’s intent to withdraw from the program and to meet with representatives of both agencies to:

a. Definitively outline the procedure and actions required for Arlington County to not participate in the Secure Communities program, and

b. Identify the actions that would be required of Arlington County regarding notification to ICE of “suspected criminal aliens” once Arlington becomes a non-activated community.

Immigrant advocates in Arlington County celebrate after the opt-out vote.

The vote was welcomed by elated cheers from immigrant activists and union members who’d gathered to support it.

“We had a big victory today,” said Margaret Huang, Executive Director for the Rights Working Group. “They took a strong position and made it clear that if the federal government expects to cooperate with local jurisdictions, they actually have to go through consultation and and discussion about programs before they are imposed on that local jurisdiction.”

Until now, only Washington D.C. had passed an opt-out resolution. Local officials in all three areas have expressed concern that the program had been activated without their approval.

“ICE didn’t ask us for our opinion,” said Arlington County board member Walter Tejeda. “It’s just something they imposed on us.”

Secure Communities shares arrest data from local jails with immigration agents. If ICE finds a match it can ask the jail to hold the person until they’re taken into federal custody. The program is supposed to target high-level offenders, but data released by ICE shows many of those identified committed traffic offenses or other small crimes.

Concerns about the program range from the distrust it creates between immigrant residents and local law enforcement agencies, to fear that police will target innocent people based on their ethnicity in order to check their status once they are brought to jail.

“Today we’re taking a step forward for fairness for immigrants. Too many punitive measures have been introduced that only highlight the negative aspects of immigrants,” Tejeda told Deportation Nation. “We have a thriving, working immigrant community that continues to not only enrich our community, but our county, our region, our state and our nation.”

A child and his parents enjoy the vote in Arlington County.

Arlington County’s resolution included a statement that it “remains firmly committed to the protection of civil rights and civil liberties for all people.”

Now immigrant advocates say they hope to launch similar opt-out campaigns elsewhere in Virginia. Secure Communities is currently active in all 129 of the state’s counties.

“We’re going to keep fighting it,” said Esteban Garces, a member of the Tenants & Workers United. “Arlington is the first step.”

Nationwide, Secure Communities is active in 632 jurisdictions in 32 states. In May, San Francisco’s Board of Supervisors also passed a resolution by a vote of 9 to 2 requesting to opt out of the program and Sheriff Hennessey resubmitted an opt out request letter to ICE earlier this month. Governors in Colorado and Washington are considering opting-out at the state level.